The Signature Requirement

Discovery Certification and Sanctions

The Signature Requirement

Rule 26(g) makes every paper exchanged in discovery a personal certification, and the signature is what makes it personal. Every disclosure under Rule 26(a)(1) or (a)(3), and every discovery request, response, or objection, must be signed by at least one attorney of record in the attorney's own name, or by the party personally if the party has no lawyer. The signer must also state an address, email address, and telephone number.¹ An attorney of record is a lawyer who has formally appeared for a party in the case.

The requirement reaches both sides of the exchange. It covers the initial disclosures under Rule 26(a)(1) and the pretrial disclosures under Rule 26(a)(3), and the rule on the form of disclosures adds that every Rule 26(a) disclosure must be in writing, signed, and served unless the court orders otherwise.² It also covers each request, response, and objection, so a signature belongs on interrogatory answers, on responses to requests for admission, and on responses to requests for production. Older decisions quote the duty as Rule 26(g)(2), in language requiring that “every discovery request, response, or objection made by a party represented by an attorney” be signed by “at least one attorney of record in the attorney's individual name.” The duty now sits in Rule 26(g)(1), the numbering this chapter uses.³

In practice the signer is nearly always the lawyer. Most American courts let attorneys demand documents and testimony from each other without a court order, so discovery runs on counsel's own requests and responses.⁴ Interrogatories show how this works. The party's lawyer usually prepares the answers, and the lawyer must sign the response; the same is true of the discovery requests a lawyer serves.⁵ Where a party also swears to its answers, the oath and the signature do different work. The oath goes to whether the answers are true. The lawyer's signature goes to the inquiry behind the response and to the certification the rule attaches to it: that the response is consistent with the rules and warranted by existing law or a good-faith argument, is not interposed for an improper purpose, and is neither unreasonable nor unduly burdensome.⁶

The rule's demand for a named individual decides whether a paper carries a valid certification at all.

The firm-name block fails and Reyes's signature succeeds for one reason: an identifiable attorney of record put her own name on the paper. The same test disposes of the other substitutes. A represented client's signature does not satisfy the rule, because a party signs personally only when unrepresented. A paralegal who drafted the response is not an attorney of record. The question to ask of any discovery paper is whether an attorney of record signed it in the attorney's own name, with the contact information the rule lists.

The rule demands a named individual because discovery has no other checkpoint. When the rules let attorneys demand production without a court order, no judge approves a request before it is served, and the process is highly intrusive and often expensive.⁷ The signature puts the checkpoint in the paper itself. By signing, an attorney or party certifies that, to the best of the signer's knowledge, information, and belief formed after a reasonable inquiry, the paper is proper.⁸ One court explained that this requirement “obliges each attorney to stop and think about the legitimacy of a discovery request, a response thereto, or an objection.”⁹ A state court applying its own CR 26(g), a rule that parallels the federal one, named what the pause guards against: delaying tactics, procedural harassment, and mounting legal costs. Such practices, it said, “tend to impose unjustified burdens on other parties, frustrate those who seek to vindicate their rights in the courts, obstruct the judicial process, and bring the civil justice system into disrepute.”¹⁰

What the signer measures the paper against includes the scope of discovery. Rule 26(b)(1) sets that scope presumptively at information relevant to “any party's claim or defense” in the action, and the scope is quite broad.¹¹ The sections that follow take up the reasonable inquiry the signer must make and each element of the certification.

Each feature of the signature rule does its own work. Requiring an attorney of record gives the court a lawyer who is formally answerable in the case. Requiring the attorney's own name keeps responsibility from dissolving into the firm, because a firm-name block names no individual who made the inquiry and no individual signer on whom a sanction could fall. The sanction provision, taught later in this chapter, runs against the signer, the party on whose behalf the signer acted, or both.¹² The address, email address, and telephone number give the court and opposing counsel a person to reach. The clause for unrepresented parties applies the same logic: a party who has no lawyer and conducts his own discovery signs for himself and carries the certification himself.¹³

Lawyers who treat the signature as routine formality neglect it at their peril. One court called Rule 26(g), enacted in 1983, “[o]ne of the most important, but apparently least understood or followed, of the discovery rules.”¹⁴